SHC suspends culture dept’s notice terminating contract with Napa

The Sindh High Court (SHC) has suspended a Sindh culture department’s notification of termination of a contract with the National Academy of Performing Arts (Napa) for using the heritage-protected Hindu Gymkhana, subject to any order that may be passed by the Supreme Court with regard to the historical building in related proceedings pending before it.

The interim order came on an application of Napa in which it impugned the notice of the culture department with regard to the termination of the contract for using of the Hindu Gymkhana property for establishing an academy for performing arts.

The culture department had issued a notice for the termination of the agreement on September 13, 2008, as Napa had constructed a theatre on the land of the gymkhana, a protected heritage, accusing it of breaching the conditions of the agreement and violating the Heritage Act.

Napa’s counsel submitted that the academy had started construction of the theatre with the consent of the Sindh government as the culture secretary was a Napa board member, who was part of the decision-making process in that regard, and he had facilitated Napa in obtaining the KBCA’s approval for the theatre’s building plan; otherwise, the KBCA would not have approved the building plan at a time when the agreement had yet to be granted to the academy.

He submitted that the agreement had in fact been executed to enable Napa to construct the theatre which was built at a distance of about 87 feet from the building of the Hindu Gymkhana and did not endanger it. He submitted that the impugned notice was malafide as it had been issued for political considerations after the change in the provincial government and that the notice had jeopardised the training of Napa’s students as well as an investment of Rs120 million in on the construction and equipment of the theatre. He said the money had come through government grants and donations by private persons.

A provincial law officer submitted that Napa was required to obtain the approval of the culture department and that of the advisory committee constituted under the Heritage Act before raising any construction on the land of the gymkhana; thus, Napa committed breach of the agreement and violated the Heritage Act.

The counsel for the Hindu community welfare organization submitted that the land of the Hindu Gymkhana had been granted in the year 1921 for cultural and religious festivals of Hindus and the building was constructed by the Hindu community for the Hindu community and therefore it should be restored to them for their cultural and religious festivals.

He stated that depriving the Hindu community of the gymkhana was an infringement of their fundamental rights. He further submitted that there still exists the remnant of a Hindu temple on the land of the Hindu Gymkhana, which goes to show that the place was used for worship as well.

He added that although the theatre was constructed by Napa at some distance from the old Hindu Gymkhana building, the land surrounding and including the old building was one composite property, which was protected heritage; therefore, any construction within such property, unless permitted by the Advisory Committee 7 constituted under the Heritage Act, was unlawful.

The counsel submitted that the agreement was an unregistered document and therefore it did not convey any interest to Napa in immovable property. He submitted that the welfare organisation was appearing before the court not only in the interest of the Hindu minority’s rights but also as a whistleblower of the unlawful agreement between the government of Sindh and Napa.

A single bench headed by Justice Adnan Iqbal Chaudhry, after hearing the counsel, observed that since the Hindu Gymkhana is a government-owned protected heritage and the subject agreement was not with any private-owner of protected heritage under sections 7(3) to 7(5) or Section 8 of the Heritage Act, the role of the advisory committee of culture department envisaged under the said provisions is also not attracted.

The court observed that prima facie it cannot be said that the construction of a theatre by Napa on the land granted to it was prohibited by the Heritage Act, or that the act required Napa to obtain the approval of the advisory committee before raising such a construction, clarifying that such observation is with regard to the Heritage Act only, and is not to come in the way of any other law that imposes restrictions on the raising of the said construction.

Regarding validation of the agreement, the court observed that the impugned notice does not allege that Napa had made any alterations to the old Hindu Gymkhana building and the same was not the case of the Sindh government; therefore, the question of breach of the subject agreement does not arise. They court however left such questions for the ultimate analysis of the case.

It observed that the plaintiff has been able to demonstrate prima facie that Napa did not commit breach of the agreement nor did it violate the Heritage Act by constructing a theatre on the land granted to it.

Regarding special interest of the Hindu community in the use of the Hindu Gymkhana for their cultural and social purposes, pending final determination of the suit , the court observed that it does not see why that interest cannot be addressed by the government of Sindh under Clause 6 of the agreement which provides that Napa shall allow the government to use the demised premises free of charge subject to the approval of chairman/CEO of Napa for events of the government relating to culture and arts.

The court observed that the balance of convenience is in its favour of Napa and its students and unless the injunction is allowed the harm to Napa and its students would be irreparable.

Allowing the application of Napa, it suspended the impugned termination notice of the culture department on September 13, 2008, subject to any order that may be passed by the Supreme Court of Pakistan with regard to the Hindu Gymkhana in related proceedings pending before it.